Know Your Rights: Leave of Absence Policies

March 27th, 2017

This post was written by Monica Porter, Esq., Equal Justice Works Fellowship Attorney, Disability Rights Advocates.

Setting the stage:

What is a leave of absence? Generally, a leave of absence is a break in studies. A leave may be voluntary or involuntary, and taken for medical or other personal reasons.

A note on terminology: Your school may use a term other than “leave of absence.” If you are considering taking a break from your studies for a mental health reason, make sure you know what kind of a break you are taking and what, if any, services will be available to you while you are on leave. For example, at some schools, a student can keep access to their campus email address and health insurance while on a leave of absence, but can’t if they formally withdraw from the university.

Which brings us to…

Know Your Rights! Students with psychiatric disabilities (e.g., anxiety, bipolar disorder, depression, and schizophrenia) are protected from discrimination on the basis of disability. Federal laws such as the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act (“Section 504”), and numerous state laws cover students with psychiatric disabilities just as they cover students with physical, learning, and intellectual/developmental disabilities. The ADA also covers all public and private colleges and universities, and Section 504 covers all those which receive Federal financial assistance (including accepting federal student loans).

What do these laws have to do with leaves of absence?

The ADA and Section 504 govern what is permissible in terms of college leave of absence policies, practices, and procedures.

Mandatory Minimum Time Off: Some colleges and universities have policies that require students who go on leave to be out for a minimum period of time, such as until the end of that quarter, semester, or year. This may be problematic.

As a general rule, colleges and universities are required to provide programs and services in the most integrated setting possible, including affording students with disabilities full and equal access to participating in and benefitting from them. By imposing a blanket mandatory time off rule, colleges may be in violation of laws prohibiting excluding students with disabilities.

Students with psychiatric disabilities are more likely to need to take a leave of absence, or multiple leaves, in order to focus on treatment to manage their symptoms. Therefore, policies requiring students to be out for a minimum period of time are more likely to disproportionately keep students with psychiatric disabilities from being able to resume their studies and graduate in as timely a manner as possible. Rather than blanket minimum-time-off rules, schools should conduct individualized assessments to determine a student’s readiness to return.

Readmission Requirements: Some colleges and universities impose requirements on students to demonstrate their readiness to return, such as engagement in therapy, work, or completion of coursework at another campus.

As a general rule, colleges and universities are not allowed to use criteria or otherwise administer their policies in a way that has the effect of “screening out” or otherwise excluding students with disabilities from fully and equally enjoying services, unless the criteria can be shown to be necessary. For example, a college or university may impose legitimate safety requirements necessary for the safe operation of its programs and services. However, any imposed safety requirements must be based on actual risk and not on mere speculation, stereotypes, or generalizations about students with disabilities.

Along those same lines, schools are not required to allow students who pose a “direct threat”—or significant risk to the health or safety of others—to participate in their programs and services. However, in determining whether such a risk exists; the school must make an individualized assessment of the nature of the risk based on current objective medical knowledge and evidence, and determine whether a modification of policies or practices could eliminate the risk.

Reasonable Modifications: To the extent existing policies, practices, and procedures have the effect of excluding or burdening students with psychiatric disabilities more than other students, students with disabilities can request an exception, or “reasonable modification.”

As discussed above, colleges and universities are required to provide students with psychiatric disabilities full and equal access to participating in and benefitting from its programs and services.

While, in some contexts, avoiding discrimination means treating various communities equally; in the context of ensuring equality for people with disabilities, it often requires taking an “affirmative step” or, essentially, treating students with disabilities differently. An example of this is providing textbooks in Braille or electronic format for students with visual impairments. In this instance, failure to provide an exception to the general rule (of only providing textbooks in traditional print) would have the effect of excluding the student with a disability from fully and equally participating in the coursework.

Federal law requires schools to make reasonable modifications as necessary to avoid excluding or otherwise discriminating against students with disabilities, unless making the modification would result in a fundamental alteration or undue burden. However, this duty is only triggered by a student notifying the university that they have a disability and need an accommodation. Therefore, if you are taking a leave of absence for a mental health reason and would like a modification of existing policies, practices, or procedures, you will need to take the first steps to disclose your disability and request an accommodation.

If this seems complicated…

You’re right – it is. But you’re not alone. Lots of students all over the country are facing mental health challenges, and many of them have taken a leave of absence to focus on their health, before resuming their studies. As a college student you have a lot on your plate, and your health should be a priority, both for you and your campus. To the extent you may need them, there are a number of laws in place that are designed to help you.

Monica is an Equal Justice Works Fellow, sponsored by Ebb Point Foundation, at Disability Rights Advocates (DRA), a nationwide nonprofit legal center. For more information on Monica’s work on advocating for college students with psychiatric disabilities, and/or to share your story, please visit www.dralegal.org/campusmentalhealth/.

DISCLAIMER: This blog post is for educational purposes only. It is not meant to provide specific legal advice or create an attorney-client relationship. In addition to federal laws, state laws vary from state to state, and this post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.